Meaning of the Word “Dependency” For Parental Dependency Claims Under the LHWCA

In a published decision, Urso v. MVM, Inc., the Benefits Review Board tackled the meaning of the word “dependency” as used in the Longshore and Harbor Workers Compensation Act and the Internal Revenue Code. In Urso, the decedent’s parents claimed death benefits under Section 9(d) of the LHWCA.

If there is no surviving spouse or child, then Section 9(d) provides “support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, and any other persons who satisfy the definition of the term ‘dependent’ in section 152 of title 26 of the United States Code, but are not otherwise eligible under this section, 20 per centum of such wages for the support of each such person during such dependency and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the injury, 25 per centum of such wages during such dependency.” 33 U.S.C. § 909(d).

The BRB determined that Section 9(d) contemplates three potential groups of claimants: (1) grandchildren or siblings, if dependent; (2) persons who are “dependents” under section 152 of title 26 of the United States Code, also known as the Tax Code or Internal Revenue Code; and, (3) each parent, or grandparent, if dependent upon him at the time of the injury. These differing categories, alone, indicate that parents are not included in the same category as Tax Code “dependents.”

“Dependency” under the LHWCA is not as stringent as “dependency” under the Tax Code. For LHWCA purposes, the common meaning of “dependency” controls. The test is “whether the contributions were needed and relied upon to maintain the alleged dependent in the position in life to which she or he was accustomed,” and even partial dependency is sufficient to pass this test. Here, the decedent made consistent contibutions to his parents and even claimed them as dependents on his tax returns.

Another issue addressed by the BRB was the timeliness of employer’s cross-appeal. Here, the employer did not receive the judge’s decision, the notices of appeal filed by the claimants or the Director, or the BRB’s acknowledgments of appeal. The carrier, however, did receive a copy of the decisions and the notices of appeal. The BRB held that “[n]otice to carrier is sufficient notice to employer under [33 U.S.C. § 935] and the laws of agency.” The employer’s cross-appeal was dismissed as untimely.

Note: The BRB’s decision did not address parental dependency for aliens. Although Section 9(d) permits benefits to parents dependent at the time of the injury, Section 9(g) permits benefits only for a “surviving father or mother whom the employee has supported, either wholly or in part, for the period of one year prior to the date of injury…”. 33 U.S.C. § 909. A similar provision in the Defense Base Act, Section 2(b), contains the same temporal language, requiring support of a mother or father for the period of one year immediately prior to the date of the injury…” See 42 U.S.C. § 1652(b). The difference in the statutory language suggests that aliens would have to prove financial dependency for a longer period of time–a period of one year–as opposed to dependency at the time of injury or death.